This spring, the U.S. Bureau of Reclamation shut off irrigation water to 1,400 farmers and 210,000 acres of land in the Klamath River Basin of Southern Oregon and Northern California, effectively ending farming for the year.
The decision was triggered by Endangered Species Act (ESA) requirements imposed by the U.S. Fish and Wildlife Service (for two species of Klamath Lake suckerfish) and the National Marine Fisheries Service (for Klamath River coho salmon). Underlying factors were several lawsuits (and threats of more) by a consortium of national and local environmental groups.
The resulting economic disaster drove Klamath Basin farmers to civil disobedience. Thousands from around the country participated in a “bucket brigade” to symbolically restore water. Later, several hundred farmers repeatedly opened the canal gates to (also symbolically) release water for their fields. When federal police arrived the farmers outflanked them by running a pipe around the gates. So far the demonstrations have been peaceful and even cheerful.
Congress responds with hearings
They also appear to be achieving their purpose. The House of Representatives held hearings in Klamath Falls, Oregon which were attended by a largely pro-farmer crowd of several thousand. Oregon Senator Gordon Smith offered an amendment to the Department of Interior budget to restore water. The amendment failed 48 to 52 on a mostly party line vote. Vermont Senator Jim Jeffords then announced his Environment and Public Works Committee will hold hearings on an exemption from ESA.
Sue Ellen Wooldridge, deputy chief of staff for Interior Secretary Gale Norton, said federal studies of endangered salmon and lake fish in the [Klamath] Basin “lack credibility.” After reviewing a portion of the scientific material, I could not agree more. However, the big issues raised by Klamath involve principle and fair process rather than scientific credibility.
The immediate crisis cooled when Norton released 75,000 acre-feet of water on July 25. That was about 20 percent of the usual annual flow, but more than what can still be used during this aborted growing season. However, the long-term issue is far from solved.
ESA “train wrecks” inevitable, desirable?
Disasters like the Klamath Basin are expected consequences of ESA; so much so that students of the law have a name for them: “train wrecks.” Train wrecks occur because ESA makes no allowance for costs or economic damage.
Environmentalists defend provisions of ESA that cause train wrecks. ESA train wrecks are to environmental activists what strikes are to labor leaders. The more clearly the public understands how ESA-based environmental lawsuits can shut down industries and communities, the more clout environmentalists have when bargaining for long-term goals.
Environmentalists argue that in the Klamath Basin. irrigated agriculture intruded on wetlands, high elevation deserts, fish and wildlife, and tribal fishing. It matters little to them that those “intrusions” also represent water rights granted in perpetuity by the federal government, that those rights were often given to returning World War I and II veterans, or that the farms they sustain embody generations of hard work.
Currently, court-supervised mediators are considering a proposal by Oregon’s Governor John Kitzhaber to turn the water back on. The catch is farmers would have to accept a 20 percent reduction in long-term water supply. That means retiring irrigated land. Environmental groups like the Oregon Natural Resources Council make clear that land retirement, which they call “sustainable farming,” is one of their major long-term objectives.
The familiar pattern of ESA controversies is repeating itself in the Klamath Basin. Environmentalists threaten short-term havoc with lawsuits focused on species survival, then bargain for long-term goals which go far beyond the scope of ESA. Use spotted owls to stop logging, obscure reptiles to stop urban sprawl, salmon to remove dams, suckers to return farmland to wetlands.
ESA’s provisions direct federal administrators to consider ESA superior to other federal laws. So ESA’s “save the species at any cost” rule trumps virtually all other considerations governing federal projects and permitting procedures.
ESA can, and must, be changed
ESA is not, however, a provision of the U.S. Constitution, one of the Ten Commandments, or a principle of physics. ESA can be changed just like other laws, by majority vote of Congress and signature of the President.
Members of Congress have different responsibilities than federal administrators. We expect our representatives to balance competing interests and values in pursuit of the larger public interest. Environmental laws and goals of environmental groups are no exception.
By adopting ESA modifications, like Senator Smith’s bill, Congress can give Klamath Basin farmers back the water the federal government promised them during the past century. Long-term issues can then be settled by other means, preferably in accordance with more balanced laws (already on the books) that would favor farmers in some instances and environmentalists in others.
Absent Congressional modifications of ESA, farmers may have to buy back their water (and survival) from environmentalists who hold the whip of ESA lawsuits.
In business, all parties leave the bargaining table with guaranteed rights and binding obligations. Not so with ESA. Any private party can sue under ESA, on behalf of a currently listed species, or others yet to be discovered. ESA was deliberately crafted to make suing the government easier than usual. If environmentalists win, the government even pays their lawyers. Farmers could trade away a piece of their future to placate present environmental groups, only to have other groups pursue them later for another piece.
ESA is a relic of a bygone political era and of decisions made without an understanding of consequences. Canada–more liberal than the U.S.–has no species protection law. Our experience stiffens Canadian resistance to enacting one. The inertia of American lawmaking works both ways. Once dead, the combative rhetoric and draconian provisions of ESA are unlikely to rise again.
Picking up where the farmers left off
The socially diverse and geographically scattered members of the anti-ESA movement need unifying slogans and symbols. Klamath is providing these: first the dusty fields, then the farmer’s calm but determined resistance.
However, unlike professional environmentalists, farmers do not earn their living from political agitation. Eventually they must cut a deal that puts them back to work.
Then the ball passes to the rest of us.
Readers of Aldo Leopold’s classic book, A Sand County Almanac, know of the reasoned and aesthetically sensitive “land ethic” he proposed. Leopold died the year his book was published (1947), long before combative rhetoric and pseudo-science enveloped American environmentalism. Theodore Roosevelt, Gifford Pinchot, and Bob Marshall were other adherents to Leopold’s view of resource conservation.
Most Americans still view the environment like those early conservationists, rather than like today’s professional environmental zealots. They believe land and natural resources exist to be used, but with wisdom and sensitivity. Use means aesthetic enjoyment as well as extractive production. Everyone’s interest counts in choices among resource uses, which means nobody’s interest can be supreme. They trust science, but retain the humility borne of scientific skepticism.
Klamath pointed out how desperately those ideas are needed in modern environmental policymaking. We can only hope–and work to ensure–that leaders newly energized by the crisis will bring about the needed change.
Robert Stokes is a retired natural resource economist, now freelance writer, residing in Spokane, Washington.